The Criminalization of Homelessness: Supreme Court Justice Rules on Sleeping in Public Places
An Overview on the recent SCOTUS decision on sleeping in public spaces
In a landmark decision that could have far-reaching implications for homelessness policy across the United States, the Supreme Court has ruled on the contentious issue of sleeping in public places - overruling a ruling from a California-based appeals court that found laws like this to be “cruel and unusual punishment when shelter space is lacking” and agreeing with an ordinance from Grants Pass, Oregon that prohibits people who are homeless from using blankets, pillows, or cardboard boxes from protection from the elements while sleeping within the city limits. Justice Neil Gorsuch authored the majority opinion in a 6-3 ruling stating that the Eight Amendment, which bans cruel and unusual punishment, “serves many important functions, but it does not authorize federal judges” to “dictate this Nation’s homelessness policy.”
He continued, “Homelessness is complex. Its causes are many. So may be the public policy responses required to address it. At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not.”
Stemming from a 2018 challenge to the ordinance in Grants Pass from John Logan and Gloria Johnson, two previously unhoused individuals, a federal district court agreed that the barring from the city ordinance was cruel and unusual punishment at night and under some circumstances during the day. (The Oregon Law Center initially filed the class action lawsuit on behalf of Debra Blake in October 2018. Blake passed away in 2021, and Gloria Johnson and John Logan stepped in as class representatives as the case made its way through the appeals process.)
On the afternoon of March 28, 2013, the Grants Pass city council held a community roundtable to “identify solutions to current vagrancy problems.” In its own words, the purpose was to “focus on developing strategies to modify behavior (and) connect people to services.” At that meeting, Lily Morgan, the council president, stated, “The point is to make it uncomfortable enough for them in our city so they will want to move on down the road.”
City code explicitly bars anyone from sleeping in public spaces, including parks, sidewalks and in cars, or using sleeping materials for the purpose of maintaining a temporary place to live, under threat of criminal and civil penalty. In city code, “parks” are defined as city halls, community centers, police and fire stations, parking lots, traffic islands or urban beautification areas owned or maintained by the city. (OPB.org)
Currently, Grants Pass has a town population of 40,000 residents with approximately 600 known to be unhoused. According to a 2022 Point-in-Time Count, 582,462 people were experiencing homelessness across America in a single night - about 18 out of every 100,000 people. Among this data, 72 percent were individual adults but 28 percent were people living in families with children. According to the same report, 22 percent are chronically homeless individuals or people with disabilities who have experienced long-term or repeated incidents of homelessness; 6 percent are veterans - distinguished due to their service to the country; and 5 percent are unaccompanied youth under the age of 25 - considered vulnerable due to their age.
In addition to this report, it is estimated that 1.28 million students (not including their parents or siblings not enrolled in K-12 schools) experienced some form of homelessness during the 2019-20 school year according to the Department of Education Data while 1.29 million people experiencing homelessness served by the health center program administered by the Health Resources and Services Administration within HHS, including Health Care for the Homeless programs, according to 2020 HHS data.
With the number of people experiencing homelessness left unaccounted for, the reported figures are undercounted and underrepresented. This includes the number of deaths of people experiencing homelessness who pass due to the dangerous conditions of living without housing - conditions that are worsening due to climate change and an increase in extreme weather.
The U.S. government does not conduct an official count of the number of people who die while experiencing homelessness. When a person experiencing homelessness (PEH) dies, their housing status is rarely recorded. However, the National Health Care for the Homeless Council identified 68 cities and counties who recorded the deaths of people experiencing homelessness in 2018. These 68 jurisdictions found at least 5,807 people without homes who passed away that year. Homeless death counts for each city or county are collected from a combination of local news reports, medical examiner office and coroner findings, through a public records request, and direct correspondence with local organizers of Homeless Persons’ Memorial Day.
Homelessness impacts people of all ages, races, ethnicities, gender identities, and sexual orientations but disproportionately impacts some populations.
The table below represents the disproportionality of homelessness by the U.S Interagency Council on Homelessness.
According to Homelessness, Health and Human Needs, a study by the Committee on Health Care for Homeless People, reviewed descriptions and discussions of the causes of homelessness and emerged two concepts. The review first emphasizes “homelessness as the result of the failures in the support and service systems for income maintenance, employment, corrections, child welfare, foster care and care of mental illness and other types of disabilities.” The second emphasis is placed on the economic factors in the homeless populations “lack of a regular place to live.” It states: “As the supply of decent housing diminishes, more and more people are at risk of becoming homeless. The tighter the housing market, the greater the amount of economic and personal resources one must have to remain secure. When the need for low-income housing exceeds the available supply, the question is “Who gets left out?” Some seem to imply that homelessness is largely a random phenomenon for those with the lowest incomes. Others however, focus on a person’s internal and external resources, arguing that when the housing supply is inadequate, those individuals and families with the least capacity to cope - because they suffer from various disabilities, have the fewest supports, or are incapable of dealing with some of the rigors or exigencies of life - will be the ones left out.”
Yet, despite the overwhelming data on people experiencing homelessness and the complexity of the societal issue, Justice Gorsuch defended his stance by stating that “people will disagree over which police responses are best” and “may experiment with one set of approaches only to find later another set works better.” “but in our democracy,” he concluded, “that is their right.”
This leaves millions of people experiencing homelessness in the hands of the criminal justice system and not in the hands of supportive services.
In her majority opinion, Justice Kagan wrote, "The Constitution does not permit cities to criminalize conduct that is an unavoidable consequence of being homeless when there are insufficient shelter beds available." The ruling emphasized that the Eighth Amendment protects individuals from being punished for circumstances beyond their control, such as the inability to access adequate housing.
The decision is grounded in a precedent set by the Ninth Circuit Court of Appeals in the case of Martin v. City of Boise. In that case, the court ruled that cities could not enforce anti-camping ordinances if there were no adequate alternatives for the homeless.
In her dissent, Justice Sotomayor began by emphasizing the entirety of the homelessness problem in the U.S. calling it a “complex and heartbreaking crisis.” She states that the problem stems from a variety of “interconnected issues, including crippling debt and stagnant wages, domestic and sexual abuse; physical and psychiatric disabilities; and rising housing costs coupled with declining affordable housing options.” (Many of these points have been thoroughly supported by data and reporting on the homeless crisis.)
She continued in her dissent to state that “The only question” before the Supreme Court in this case, “is whether the Constitution permits punishing homeless people with no access to shelter for sleeping in public with as little as a blanket to keep warm.” In her view, the only answer to that question is “no.”
The ruling has significant implications for cities across the United States. This Supreme Court decision gives cities broader latitude to punish people for sleeping in public when they have no other options which will lead to municipalities taking more aggressive actions to remove encampments, including throwing away more personal property exclaimed advocates and legal experts.
“There will be even more of these sweeps and attempts to just close down encampments or harass people who are living on the streets to just basically make them become less visible, maybe leave town,” said Stephen Schnably, a law professor at the University of Miami who has advocated for the rights of homeless people in lawsuits.
Sara Rankin, a law professor at Seattle University who studies the criminalization of homeless people stated to ProPublica on the court’s decision that it will embolden the dehumanization of unsheltered people. “Cities have always had the ability to sweep and they continue to do that at reckless paces,” she said. “What happens to people? Will people be more harmed as a result? I would say that is a very, very deep concern.”